Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Wednesday, April 01, 2009

Kauer v. Holder (9th Cir. - April 1, 2009)

It's perhaps appropriate that this opinion gets published on April Fool's Day. Because some may find it a joke -- a sad, pathetic joke -- that people can get deported based upon secret evidence that they have no abilty to dispute. The Ninth Circuit, however, thinks it's not so funny. And reverses and remand on this basis.

There's some incredibly good stuff here, especially for those interested in the ongoing/neverending War on Terror. Judge McKeown authors a careful, deliberately moderate opinion. She denies one appeal as moot -- the petitioner had already been deported, since after eight solid years in prison during ongoing deportation proceedings the petitioner told the IJ that it'd be better “to die in a real jail in front of his people” than to continue his seemingly indefinite confinement in the United States. So you're gone, and even though you might be entitled to relief, tough. The judiciary can't give you any once you're out of here. With respect to the other petitioner, however, Judge McKeown gives her a remand, and hence an opportunity to confront the evidence against her -- an essential element of due process.

As I said, Judge McKeown's opinion is mellow and restrained. Perhaps what you might expect from someone who has had her name bandied about as a possible Supreme Court nominee. By contrast, Judge Noonan faces no such constraints, and in any event has no problems calling them how he sees 'em. And writes a short but powerful concurrence to make his feelings on this issue known. Hmmm, which line to quote? How about the one where he analogizes the conduct here to Nazi Germany or the Soviet Union: "See United States ex rel. Mezei, 345 U.S. 206, 217-218, 224 (1953) (Black, J., joined by Douglas, J., dissenting) (comparing the power conceded to the Attorney General to the arbitrary procedures provided by the criminal law of Nazi-Germany or the Soviet Union) (Jackson, J., a former Attorney General and chief prosecutor at Nuremberg of Nazi crimes against humanity, joined by Frankfurter, J., dissenting) (stating simply that procedural due process is “of the indispensable essence of liberty”)." Come on. Tell us what you really think. :-)

Judge Rawlinson then writes her own short concurrence. Which indicates that she's on the other side; that she joins Judge McKeown's opinion only "reluctantly," and articulating her belief that petitioners should have been deported a long time ago already.